The Matlock Blog

Finally

This has absolutely nothing to do with law whatsoever.  But I'm so giddy, I can't help myself.

My favorite team, the Detroit Tigers, have finally made the move to correct one of their biggest mistakes in the last three years.  Following the 2006 World Series run, it was thought by many that the Tigers would contend for years to come.  I always hoped they would.  But when the Tigers traded prospects for Yankee slugger Gary Sheffield, I knew it wouldn't happen.  They finished last in the AL Central last year.  By the way, the Royals are in the AL Central.

So, after years of seeing Sheffield get hurt and look like a fish out of water at the plate, the long nightmare is over.  The Tigers released Sheffield today after paying him something like $25 million over the last two years.  

By the way, Opening Day is only seven days away.  I'll be at the Ballpark in Arlington.  See you there.

When did you stop beating your wife?

Domestic violence is bad.  It is.  I'm not sure you'll find anyone that condones it.  But in many respects, this is true with any criminal activity.  But like its cousin, DWI, Domestic Violence is often a politically-charged crime.  It plays well in the media.  It's one of those crimes that can be played out as a "it can happen to anyone" crime.  

Domestic violence is such a "big deal" that there is actually a misdemeanor court in Tarrant County devoted solely to handling domestic violence assaults and similar crimes.  County Criminal Court Number 5, Judge Jamie Cummings, presiding.  I love that court.  I hate that court.

I will admit that domestic violence cases are somewhat unique in the sense that, for a number of reasons, there are more recantations in a domestic violence case than any other.  Too often, the alleged victim decides that it didn't happen.  Whether it be because she realizes her boyfriend is going to jail for real, that a conviction for her husband could ruin the family, or the acknowledgment that she was really just trying to get him in trouble and realizes how big of a deal it is, there isn't a day that goes by where a domestic violence "victim" says it didn't happen.

Of course, from the defense perspective, this can be great.  I would say seventy percent of my practice is victim-less anyway, so if I can have an honest-to-goodness victim say it didn't happen, why would I complain?  Go ahead, madam prosecutor, call the "victim" to the stand.  This should be fun.  And I'm all about fun.

I have more cases set for trial in this one court than any other four courts combined.  Why?  It's not because I have more triable cases than the rest, although strangely this is a lot of it.  But rather it's that I have fewer options to me but to put the State to its burden and go to trial.  

Granted, deferred adjudication is available for domestic violence cases.  This is unlike DWIs, which go to trial for many of the same reasons.  But in recent years, domestic violence cases have become weighed down by so many collateral consequences that pleading to deferred is of no significant value.  Sure, you don't get "convicted" in the strictest sense of the term, but you still have to deal with a number of collateral consequences associated with a conviction.

Sure, I do like to try cases, but sometimes cases should be resolved some other way.  Of course every defense attorney would like to get their cases dismissed, just like every prosecutor would probably like to get a conviction for every case.  The problem is we don't start from the same place.

"We don't dismiss."  I've heard this mantra all too often associated with domestic violence cases.  The truth is, the good prosecutors who apparently have personally offended someone high up in the D.A.'s office to be assigned to the "Love Court" in the first place will dismiss cases they know to be "dogs."  I applaud them for that.  It's just knowing what your case is worth and resolving it.  They are good prosecutors.  And there is always the prosecutor who will finally dismiss a case after it has languished for almost year when they know it's a "dog" and are only holding off in hopes the defense will cave to a plea.

But it's the zealot that causes the problems.  Those prosecutors that make the argument that "it happened in front of the kids" or "it could have been a lot worse" that become the problem. 

First of all, if "it" didn't happen, as relayed to you by your "victim"  in her statement saying she only wanted to get him in trouble, then "it" didn't happen in front of the kids.  See how that works?  I think there is a freshman year logic class you can enroll in to get that.

Secondly, if you really think the case should have been a felony, why don't you, as the prosecutor, charge it as such.  There is no more ridiculous argument from a prosecutor, the person who decides how a case is filed, than to say it could/ should have been a felony.  If it's a felony, file it as such.  If not, shut up.

The problem is that all too often one of the trappings of being a misdemeanor prosecutor, believing that if it's in the police report it must be true, is exacerbated in a domestic violence case.  It almost seems with some prosecutors that they hold out no possibility for another side of the story.  It's funny, kind of.  It's also sad.

I don't really know what the source of the problem is.  I know that Court 5 is swamped with cases.  They have tried a number of things to relieve the pressure of an overloaded docket over the last several years, but it only seems to be getting worse.  

I don't know if it is an internal policy of the D.A.'s office, a directive of those "senior" felony prosecutors that oversee the misdemeanor prosecutors, or just dumb luck that causes the problems in this court.  But there has to be something.

There is a reason why prosecutors in Court 5 lose more trials (a very well-respected defense attorney told me the other day it's between 2 out of every 3 and 3 out of every 4 trials).  I wonder if it has to do with not getting value from your case?  I can't imagine the prosecutors in this court are not any good.  The ones I deal with are very good.  Of course one comes to mind that may be the exception.  But she hates me anyway.  I'll just have to be brave about that.

Granted, I am probably public enemy number one in the D.A.'s office, or at least with those in Court 5 over the last year and a half.  But it's never personal with me.  It's a job.  They think I am screwing with them because I set so many cases for trial, or that I don't negotiate with them to resolve it.  It's not.  It's valuing my cards.  My client tells me he didn't do it and there is a witness who can substantiate that.  What would I do but set it for trial?

The problem with this court seems that there are too many prosecutors being held to an unreasonable expectation by their superiors.  Those that do the day-to-day grunt work of handling these cases can value them pretty well (although there is the exception, and you know who you are).  It's just that their hands are tied.  

But what the hell do I know?

Judge Keller Blames the Victim

One thing that defense attorneys often do that most prosecutors despise is to blame the victim.  We put the victim on trial.  If we can blame the victim for the predicament our client is currently in, then perhaps we can make the argument that our client isn't truly responsible after all.  

A lot of people don't like this tactic.  In fact, the rules of evidence actually prohibit that tactic in many situations.  Prosecutors don't like having to defend their victim.  Judges get annoyed and often tell defense attorneys to "defend your client, don't sling mud at the victim."  

This tactic is just one of the many varied reasons most prosecutors, judges and common everyday people don't like defense attorneys.  Of course, as with many things, it's easy to dislike something when you don't need it.  I don't like the taste of Pepto, until I need it.  Most people don't like the criminal defense attorney, until they need one.  Don't believe me?  Just ask Court of Criminal Appeals Presiding Judge Sharon Keller.

It's been reported a few times by now about Judge Keller's response to the allegations made by the Texas State Commission on Judicial Conduct.  Mark Bennett posted a witty something here and Texas Lawyer wrote about it here.  Two things particularly interested me about this.  The first is that Judge Keller wants the appointed counsel of her choice.  (This is so rich I'll have to write about it later.)  The second is she is using a tried and true defense tactic; blame the victim.

In Judge Keller's Answer to the Commission's allegations, the judge enters a general denial in paragraph one of the answer.  (H/T to Mark Bennett for the links)  The next twelve paragraphs are admissions of various factual allegations, such as "Judge Keller is now and was on September 25, 2007 the Presiding Judge of the Texas Court of Criminal Appeals ("CCA")."  

However, the next twenty-four paragraphs fall under a section entitled "Additional Facts Omitted by the Commission."  The paragraphs detail the specifics of the Richard case that is the center of the Keller debacle.  

Judge Keller, presumably knowing the answer she filed with the Commission was public, detailed the specifics of the Richard murder.  She made a point to let everyone know "Mrs. Dixon's children returned home around 9:30 p.m. on the day of the killing to find...Mrs. Dixon dead in the bedroom."  

Also this, "Nowhere in the motion or attached 'Proposed Petition' did Richard claim that Texas' method of lethal injection was unconstitutional.  In fact, in over 20 years of litigation Richard never once made that claim until September 25, 2007."  

And this, "Indeed, Richard was not seeking on September 25, 2007 'to avoid execution.'  He merely wanted Texas not to 'include chemicals that are unnecessary to the effectuation of his death.'"

And my personal favorite, "Richard insisted on a trial but did not testify.  Had he accepted the state's offer of life in prison in exchange for a guilty plea he would not have been executed."  

You know what all of this really is?  Michael Wayne Richard was a bad guy that did a bad thing whose lawyers were lazy and in the end he had it coming.  That's it.  Judge Keller is blaming the victim.

Maybe Richard was a bad guy.  Apparently he did a bad thing.  I doubt you could call his lawyers over the "20 years of litigation" in this case anything if not diligent.  After all, they tried to file a stay after SCOTUS ruled just that morning that it would hear the Baze case.  Did he have it coming?  Seriously?

So because Richard was a murderer sentenced to die for his crimes, he shouldn't get the same opportunity to exhaust all of his remedies in court?  Apparently Judge Keller things so.  At least if that means she's off the hook.

Judge Keller is doing the very thing prosecutors, both those in the D.A.'s offices around the state and those that happen to wear black robes, hate.  Judge Keller is blaming the victim.  She's trying to deflect the blame directed at her.  She's just doing what a good defense attorney would do.

Seems like a damn good tactic now I bet, huh Judge?  But what the hell do I know?

Federal Criminal Defense

They say "Death is different."  This references the specific requirements for handling a death penalty case.  The same is true for federal criminal defense.  Bottom line?  If you don't know what you're doing in federal court, it's probably not the place to learn on your own.

I remember when I first moved to Fort Worth.  The general consensus was that there were only a handful of attorneys that went to federal court.  I was told the reason for that was because most of the local defense bar was afraid of one of the federal judges.  I don't know if that's true or not.  But, the point is, at that time, there were few attorneys that ventured into federal court.

Nowadays, there are more and more defense attorneys making appearances in federal court.  Of course I have no problem with people trying to make money, and sad as it is, some attorneys look to appointed cases as a way to pay the rent.  But there's a reason I say more defense attorneys are "making an appearance" in federal court.  They're not doing much but standing there.

Federal criminal defense is different.  It doesn't roll off your tongue quite like "death is different" but it's just as true.  There are sentencing guidelines.  Of course everyone pretty much knows that.  Of course, few of these people appearing in federal court have the first clue how they work, or how to make them work for you.

But it's more involved than that.  For example, if your client happens to be out on pretrial release and then appears for his guilty plea (called a rearraignment by the way), guess what?  He's going probably going into custody.  That shouldn't be a shock to you as the attorney.  It really shouldn't come as a shock to your client.

In the Northern District of Texas, the judges don't accept binding plea agreements.  That would probably be something you'd like to know ahead of time, huh?  

You're never going to get any help from the U.S. Probation office.  Shouldn't be a big surprise, but I routinely speak to attorneys who seem absolutely amazed that their client's PSI turned out the way it did.  

I'm not saying I'm the world-renowned expert on federal criminal defense.  Maybe, one of these days, I will.  But I at least read the rules before I head into a courtroom where my client is likely looking at a mandatory minimum prison sentence.  

You can't effectively represent someone in federal court by winging it.  As they say, "We play the full nine innings at this level."  If you can't, stay out of federal court.  You know who you are.

Election time....sort of

I love election time.  What a great time during the year.  Along with opening day at the ballpark, it's one of those truly American days.  Of course, it's March after an election, so why am I talking about an election?  Because it's never too early to look toward the race for Tarrant County District Attorney in 2010.  

Seriously.  It's not.

Current District Attorney Tim Curry is in what many consider his last term.  The longest-serving D.A. in Texas has been in office since 1972.  However, he is undergoing treatment for lung cancer, and as a result many believe the 70 year-old Curry will not seek reelection.

So, with an opening presumably on the verge of being created, who fills it?

Let's keep something in mind.  Tarrant County is Republican.  Say what you will about the current state of American politics, even Texas politics, but this is a red county.  Clearly the most Republican urban area in one of the most Republican states in the nation.  So we will begin with potential candidates from the Republican party who would likely have a decided advantage over any Democratic candidate in the general election.

Ask anyone in the criminal courts, and most will tell you who they think will be the next D.A.; former judge of the 213th District Court, Robert Gill.    Judge Gill unexpectedly resigned about 18 months ago from the bench.  Afterwards, he took a position within the D.A.'s office and has been handling a smattering of publicized cases.  The most recent was obtaining the conviction and death sentence for Erick Davilla for the shooting death of a 5 year-old and her grandmother.  

If memory serves, former judge Gill has obtained at least two death sentences since his return to the D.A.'s office.  I don't know his particular title within the office, of course I don't really know the particular titles or classifications of most/ all of the prosecutors.  

I had very limited exposure to former judge Gill while he was on the bench.  It's hard to explain, but I haven't.  So I can't say that I have a lot of personal knowledge that I can use to predict how he would be as D.A.  But he's not the only potential candidate.

I understand that Judge George Gallagher of the 396th District Court is interested in the spot.  I love Judge Gallagher.  I don't know that I have ever heard a bad thing said about the judge by anyone.  He's an excellent judge, and widely considered to be the most compassionate felony judge in the courthouse.  

I don't know how I feel about Judge Gallagher potentially becoming D.A.  I have no doubt he would make an excellent D.A., but I'm more concerned with what would be lost in the 396th.   The judge is so well-liked that I would almost hate to see him leave.  But I have no doubt he would make an excellent D.A.

A somewhat unusual name that has surfaced as showing interest in the spot is former Assistant  D.A., and current director of the Trinity River Vision Authority, J.D. Granger.  Granger, of course,  is the son of Congresswoman Kay Granger.  He has served as director of the Trinity River project for the last several years.  I vaguely remember him as an A.D.A., but I would think the only way he could conceivably win would be with the help of his mother and their long-time ties to the Republican party.  But that's just me.

Of course, this is still America, so we have to at least consider the other guys.  Two years ago, the Democrats put former A.D.A., former A.U.S.A., then defense attorney, Terri Moore.  As I understand it, Moore had been promised the job by Curry when he stepped down.  But apparently he didn't step down quick enough, so she ran for it.  Although she actually did better than many believed she would fare against Curry, needless to say she did not become Tarrant County's only Democrat in county office.  

But nowadays, Moore is the second-in-command in Craig Watkins' Dallas County D.A.'s office.  After the Democratic nonsense sweep in 2006, Dallas went blue overnight.  Would Moore consider leaving Dallas to return and take a shot next door?  

It's hard to say.  Her experience in Dallas would certainly be a great campaign issue to talk about.  Could she bring the change to Tarrant County that she helped bring to Dallas with Watkins?  Possible.  But there are others that think Moore will remain in Dallas ready to step into the D.A. position should Watkins stumble.  

But who else could the Dems throw out there?  Could perpetual Court of Criminal Appeals candidate J.R. Molina decide to ditch his desire to be on the Austin bench and use his considerable Democratic base to make a run for the D.A. spot?  

I'm sure there are others in the Democratic party that might make a run at the spot, but I wouldn't really know who they are.  I'm sure there are a number of defense attorneys that are Democrats that would consider the job.  However, if the Democrats are smart, they should get their ducks in a row and have one candidate out there instead of allowing there to be a drawn out primary season.  It's costly, and I can't imagine the party can generate the funds necessary.

The bottom line is that there is almost certainly going to be a new D.A. in Tarrant Count in 2010.  It will have been almost 40 years since Curry took office.  It will be the end of an era, but will anything really change?

of choices and chances

There is a process called the jail run.  I'm not a fan.  Not so much in terms of principal, but rather because I find that I am personally ill-suited to do much good there.  

Essentially, a judge will bring to court a number of those accused that have been in custody for a given amount of time and have failed to bond out and retain counsel.  When it comes to dispensing "justice" it's lacking.  However, convenience is in abundance.  It's Let's Make a Deal.

Of course, this post has nothing much to do with jail runs, other than that is how the story begins.  About six months ago, I was making an appearance with a particularly nervous client in the Magistrate Court for additional bond condition to be added.  It was the same morning as a felony jail run.  

My instinct is rarely wrong.  I knew that if I was in the Mag Court any more than absolutely necessary, I might well be tapped to represent someone on this jail run.  

Mind you, I have no problem representing the indigent, or representing those a given judge might ask me to represent.  But there are two places that I seem to be least effective as a criminal defense lawyer; in front of a small town jury and with a newly-appointed felony jail run client.

With Irish luck in tow, I heard the voice; "Mr. Matlock, would you have time to represent someone this morning?"  I did, but I didn't want to admit to it.  But before I could come up with an excuse, I heard "Thank you."  And what do we have for the winners, Johnny!

I briefly spoke to the prosecutor about the case, then I went into the holding cell area.  My client was a a forty-seven year-old African American woman with four prior felony convictions and five prior misdemeanor convictions.  She was charged with stealing $76 worth of items from a dollar store.  However, because of her prior felony history, she was potentially looking at a third degree felony.  That's between two and ten years in prison and up to a $10,000 fine for those keeping score at home.

I spoke with her briefly.  It was a quick exchange involving numerous emotions; fear, contempt, distrust, sadness.  These were primarily hers.  

She was willing to take a 12.44(a).  Who isn't I thought.  Unfortunately, with four prior felonies, it wasn't an option.  Then she would take a year.  The prosecutor handling the case that day, who is one of the nicest people I know, was firm on 17 months.  No deal.  The case was reset, and she was sent back to county.

Over the next month or two, I saw her either in the jail or in a couple of court appearances.  We couldn't reach a deal with the State, so it seemed the inevitable worthless trial was in the works.  But then, she bonded out.

Keep in mind, she always told me she would do just that and when she did, she would get herself a "free-world lawyer."  Fine by me, I thought.  But after she bonded out, she would call and ask serious questions.  Then, at one court appearance, she brought her new husband.  She had a look about her that was different.  Not just the out-of-custody glow, but something.

We finally ended up at "The River."  Put up or shut up.  The prosecutor at this time was firm on some time, but was willing to go to the minimum; two years.  I talked it over with my client, but she was not wiling to go back to prison.  She was different she told me.  So did her husband.  Adamantly.

I told her there was little to gain by going to trial.  The guilt/ innocence was not an issue, and with her history, the punishment would not get better than the two years offered.  I told her we could do an open plea and ask for a long PSI.  A PSI is short for presentence report.  It's done by the probation department, and it serves as a way of getting an overall picture of a person; good and bad.

Up to this point, she had had the glow for about two months.  With her history of drugs and crime, I was fully prepared for her to test positive while out on bond.  She didn't.  I expected the probation officer doing the PSI to report that she needed simply to go back to prison, this time for the fifth time in her forty-something years.  Oddly, that didn't happen.

When the PSI came back, I was nothing less than shocked.  Keep in mind, when I spoke to her after she bonded out, I told her it would be very important for her to stay out of trouble and keep clean.  When we decided to do the open plea, I reminded her of this.  She agreed, and she told me that she was changing her life.  

Of course, every criminal defendant says that.  The threat of prison, no matter how many times you've been there before, has the strange effect of at least giving a defendant a moment of pause.  As we know, all too often it is short-lived.

When the PSI finally arrived on my desk, I quickly flipped through it expecting the worst.  I found only the best.  Sure there was the history of incarceration and drug abuse, but there was more.  It seems the biggest reason my client had used drugs in the past was that she suffered from mental health issues.  This had led to a vicious cycle.

She self-medicated.  This caused her to steal to pay for her drugs.  She got caught.  She was incarcerated.  As the PSI concluded, this cycle took up almost 75% of her life.  

But beyond that was the fact that this drug addict since age 14 had been clean for over six months.  Not a single positive test.  She had gotten married, moved into the Salvation Army shelter and completed their drug intervention program.  She had, in essence, cleaned up her life.  Literally.

However, sentencing day awaited.  This could of all have been for nothing.  The chances of her coming out of prison with the same mindset she had been able to obtain were slim.  But that hadn't deterred her.  She wanted to clean up her act, and she had.

When we arrived for sentencing, no one was more surprised than the judge.  Of course the judge had seen countless defendants in the same situation not make the choice to change like my client had.  So, with the choice made, the chance was given.

The easiest thing in the world for the judge to do would have been to simply send her for prison trip number five.  But she didn't just claim to have changed, rather she had changed.  The judge recognized this.  And kudos have to go to the prosecutor handling the case at this point.  He could have argued for time, and a lot of it really.  He didn't.  He left up to the judge.

What started as a jail run client being offered prison time ended with a client who had made the choice to clean up her life.  It can't be hard to kick a drug habit after thirty-something years of addiction.  But she made that choice.  Because of her choice and her effort, the judge gave her the chance.  Six years of probation.  

Will she successfully complete it?  I don't know.  But she has her chance.  And sometimes, that all you can ask for.

And the hits just keep on coming

Sometimes, when making a point, the best thing to do is to do nothing. To say nothing. To allow the point to be made by itself. 

With that said, I give you 31-year-old, 8-year-veteran, King County, Washington Sheriff's Deputy Paul Schene versus the 15-year-old, unarmed girl.